ursuant to
the new law signed by Governor Murphy on February 4, 2019, NJ’s minimum wage
will increase on July 1, 2019, and on the first of January each year thereafter
until 2024 so that by 2024, NJ’s minimum wage will be $15 per hour.Click here for the NJ minimum wage increase
schedule.

When do employees start accruing sick time? How is paid sick leave accrued? Can
employers require new employees to complete a certain number of days of
employment before using accrued sick time? Click here for the answers.

Can accrued sick time be carried over to the next benefit year and if
so, to what extent? That depends . . . Click here for the answer.

What
happens to unused, accrued sick leave upon separation? What
happens to unused, accrued sick leave if a former employee is reinstated to
employment? Click here for the answers.

For what
reasons may paid sick time be used? May an employer require advance notice and documentation? What
if an employee is absent for 3 consecutive days or more? Click here for the answers.

What if I work or run
a business in a NJ municipality that has its own paid sick leave ordinance - which
law applies?Click here for the answer.

Employment Practices (March 2018)

NEW, BROAD EQUAL PAY ACT COMING TO NEW JERSEY

New Jersey will
soon be one of the first states to have an equal pay law that extends beyond
gender to all classes of employees that are protected under the state’s antidiscrimination
law. Governor Murphy is about to sign the Diane B. Allen Equal Pay Act, which makes
it unlawful for an employer to compensate employees of a protected class
less than employees that are not in that class for “substantially similar” work
in terms of skill, effort, and responsibility. It will also be a violation of
the law for an employer to retaliate against an employee for requesting,
discussing with, or disclosing to another employee or his/her lawyer or any government agency,
information related to employee compensation. Also, the law prohibits a NJ
employer from requiring an employee, as a condition of employment, to sign a
waiver or to agree not to make these types of requests or disclosures. The law
applies to both public and private employers in NJ.

Q: Under what
circumstances will an employer be allowed to pay different rates of
compensation to employees for substantially similar work?Click Here for the Answer.

Q: If a NJ
employer conducts an internal audit and finds violations of the NJ Equal Pay
Act, can the employer decrease the compensation of certain employees to the
compensation of other employees so that they are paid equally? Click Here for the Answer.

As we get
closer to the date the Equal Pay Act takes effect, July 1, 2018, employers
should identify any problematic pay disparities and, if found, take steps to
remedy any differences that could be attributed to membership in a
protected class.

Employment Practices (February 2018)

NEW BREASTFEEDING DISCRIMINATION LAW

One of Governor Christie’s last acts before
leaving office was to sign a law to
protect breastfeeding under the New Jersey Law Against Discrimination. It is
now a civil rights violation for an employer to fire or
otherwise discriminate against a female employee for breastfeeding or
expressing her milk during breaks. A NJ
employer also may not refuse to hire a breastfeeding job applicant. NJ’s law
applies to all employers regardless of size and applies to all employees. It
requires employers to provide reasonable break times each day and a suitable
room or location, other than a toilet stall, for an employee to express milk in
private, which should be near the employee's work area, unless the employer can
show that providing this accommodation would pose an undue hardship on its
business operations.

Governor
Murphy’s
first official act upon taking office was to sign an executive order
targeting
the wage gap between men and women working in NJ. Effective February 1,
2018, NJ
state agencies are prohibited from asking a job applicant for past wage
history
unless or until a conditional offer of employment, including an
explanation of
the overall compensation package, has been extended. State agencies may
not investigate or research prior salaries of applicants, but may
request or verify current or previous compensation information prior
to a conditional job offer if an applicant volunteers such information
or
if verification is required by federal, state or local law. An agency
that
obtained salary history information prior to the effective date is
prohibited from using that information in any employment
decision unless required by law or collective bargaining
agreement.

Q: Does NJ have a similar law that applies to private employers statewide?

Q1:A private employer in NY fires an employee after seeing videos on Facebook of the
employee branding a tiki torch and wearing a KKK t-shirt at the Charlottesville,
VA rally. The employee argues that his First
Amendment rights were violated by the firing. Is he correct?

A1:The First Amendment of the U.S. Constitution
protects free speech and "the right of the people peaceably to assemble." Read On.

Q2:The employee did not have an employment
contract and was employed “at-will”.Was
he wrongfully terminated?

A2:Employment “at-will” means that an employer can
terminate an employee for any (or no) reason, at any time. Read On.

Q3:What if the
employee is a lawyer and the employer is a NY law firm that regularly
represents victims of discrimination. Is the termination wrongful?

On May 4,
2017, Mayor de Blasio signed a bill into law aimed at eliminating the wage gap
between men and women. When the law goes
into effect on October 31, 2017, it will be an “unlawful discriminatory
practice” for NYC private employers to ask for salary history information from an
applicant, an applicant's current or former employer, or from an employee or
agent of that employer. Employers will also be prohibited from conducting
any form of search through publicly available information for a prospective
employee’s salary history. The employer may not consider an applicant’s
salary history in determining the salary, benefits, or other forms of
compensation for that applicant. “Salary history” includes not only an
applicant’s current or prior wage, but also benefits and any other form of
compensation he or she may have received.

NYC private
employers should update their job applications, review and revise their
background check forms and phone screen and interview materials and train staff
for compliance. Questions regarding salary history must be eliminated. Anyone
involved in the recruiting and hiring process should be trained as to the law’s
requirements, including ways to avoid claims that salary history was disclosed
involuntarily or at the prompting of the interviewer. A process for documenting
when an applicant voluntarily discloses salary history and other compensation
information should be implemented. Employers in NJ and areas outside of NYC may
also want to take similar steps over the coming months as this is a trend that
is likely to come their way.

Q: Which
municipality is the 13th in NJ to require its private employers to provide paid
sick leave to employees?And, (in case
you haven’t been reading my prior newsletters) which 12 municipalities already
have such laws?

The new overtime rules issued by the U.S. Department
of Labor raise the salary level for several overtime
exemptions under the Fair Labor Standards Act.
The FLSA currently requires covered employers to pay minimum wage
($7.25) and overtime (time and a half on more than 40 hours worked in a
workweek) to employees, unless they are exempt. The exemptions are limited. For Executive,
Administrative and Professional workers to be exempt, they must be paid a
salary of $23,660 annually or $455/week.
The new rules change the salary level to Read On

On
April 4,
2016, Governor Andrew M. Cuomo signed legislation enacting a
statewide 12-week paid family leave policy. Under the new Paid Family
Leave law, NY
private sector employers will be required to provide paid family leave
to employees
that need to care for an infant or a family member with a serious
health
condition or to relieve family pressures when someone is called to
active
military service. Benefits will be phased-in beginning in 2018 and
fully
implemented in 2021. Paid leave benefits are to be funded through
employee
payroll deductions.

Q: How many
weeks of paid leave are we talking about?

A: Starting in 2018, up to 8 weeks of leave at 50
percent of the eligible employee’s average weekly wage, to a maximum of 50
percent of the state’s average weekly wage.In 2019, this increases to . . . Read More

Q: Does the
NY Paid Family Leave law have an exception for small businesses? Does it apply
to all employers or only those with 50 or more employees as under the federal
Family Medical Leave Act (FMLA)?

On April 4,
2016, NY Governor Andrew M. Cuomo signed legislation enacting a statewide $15 minimum wage plan.Minimum
wages will increase depending upon the size of the employer and the
county where the employer is based. Click here for an Easy To Read Chart outlining Gov. Cuomo's plan.

Q: Plaintiff,
a gay employee, sues his employer under Title VII for discrimination citing
numerous examples of his supervisor’s anti-gay behavior including (i) a movie
poster, circulated to the office and posted on Facebook by the supervisor,
depicting Plaintiff’s head superimposed on the body of a bikini-clad woman
reclining on her back with her legs in the air which the supervisor describes
as “the gay sexual receiving position”; (ii) drawings put on a company
whiteboard by the supervisor, one of which showed Plaintiff’s torso on the body
of a four-legged animal with a tail and penis, urinating and defecating, and a
second drawing which depicted the Plaintiff naked, with an erection and
exaggerated muscles, and an air pump being manned by another employee and
attached to Plaintiff’s wrist, with text next to Plaintiff reading “I’m so
pumped for marriage equality,” while text by the other employee says, “I f*#ing
hate being pumped”; (iii) a comment made to a co-worker in which the supervisor
stated that “if he were gay, he’d like to have gay intercourse with [the co-worker]”;
(iv) the supervisor asked another employee during an office trivia game how it
felt to “be beaten out by the gay guy”; and (v) during a large office meeting,
when the supervisor was feeling ill, he turned to the Plaintiff and said “It
feels like I have AIDS, you know what that’s like?” Does the Plaintiff have a cognizable claim for
discrimination under Title VII?

NJ ALERT-Earlier this month, the New Jersey Supreme
Court in Hargrove v. Sleepy’s, LLC, decided that the “ABC” test set forth in
the New Jersey Unemployment Compensation Act, will be used to determine whether
a plaintiff is an employee or independent contractor as to claims under New Jersey's Wage and Hour Law and Wage Payment Law.The ABC test
presumes that an individual is an employee. The burden is on the employer to show that:
(1) the employer neither exercised control over the worker, nor had the ability
to exercise control in terms of the completion of the work; (2) the services
provided were either outside the usual course of business or performed outside
of all the places of business of the enterprise; and (3) the individual has a
profession that will plainly persist despite termination of the challenged relationship.Failure to satisfy any one of these criteria
results in an “employment” classification, requiring the employer to pay non-exempt
employees at least minimum wage and overtime at time and a half. Click here for a Q&A on the ABC test.

Note - New Jersey’s
Wage Payment Law governs the timing and mode for the payment of an employee’s
wages. New Jersey’s Wage and Hour Law provides for minimum wage and overtime
benefits paid to employees. Independent contractors are not protected by these
laws. For more information on these laws,click here.

NY ALERT- As of
December 31, 2014, New York State's minimum wage is $8.75 per hour, with few
exceptions. Employers must post the NY Minimum Wage Information poster in their
place of work.

Do you need a copy of the new NY Minimum Wage Information Poster?
Click here.

NJ ALERT - PAID SICK LEAVE IN FIVE NEW JERSEY CITIES - Paterson, Passaic and East Orange recently passed
ordinances mandating private companies to provide paid sick leave. Newark and Jersey
City previously passed similar laws. Employers in these cities should review
their current sick leave policies to determine compliance, including notice and
posting requirements. Click here for links to these ordinances.

NY ALERT
- PAID SICK LEAVE IN
NEW YORK CITY?

In June 2013, the NYC
council passed the Earned Sick Time Act. At that time, I reported the
basic nuts and bolts of that law. After Mayor DeBlasio's inauguration last
January, the City council amended the Act making it even broader. The Act, as amended, went into effect April 2014. Click
here for the highlights of the amended Act.

ALERT UPDATE – As
I reported in April 2013, New Jersey adopted the Revised Uniform
Limited
Liability Company Act effective March 2013, revising the charging order
provision by allowing for the appointment of a receiver and, if a
creditor could show that
distributions under a charging order would not satisfy its judgment
debt within
a reasonable time, foreclosure of the member’s transferrable interest
in the
LLC. N.J.S.A. 42:2C-43 (2012).Earlier
this year, Governor Christie passed into law an amendment to the LLC Act that
eliminates receivership and foreclosure as a remedy and returns the provision largely
to its 2012 state. Under the current law, a court order charging the transferable interest of a member is the sole
remedy of the judgment creditor.The law
further clarifies that the judgment creditor has no right to interfere with management,
force dissolution or foreclosure of the transferable interest. In light of this
Amendment, I am re-posting my original Q & A,
updated for this revision.

ALERT - As of
May 7, 2013, employers must use the new Eligibility Verification Form
I-9 for all new hires, as well as for re-verifying current employees
with expiring employment authorization documents. Failure to use the
new form after May 7th may result in large fines. Please contact us if
you need the new Form I-9 or a copy of the Handbook for Employers
published by the U.S. Citizenship and Immigration Services.

ALERT – The NJ Revised
Uniform Limited Liability Company Act went into effect as of March 18,
2013.It applies to LLC’s formed on or
after March 18, 2012 and LLC’s formed prior to March 18, 2013 which elect to be
subject to the revised Act. It applies to all other New Jersey LLC’s beginning
on April 1, 2014.